Fashion copyright in Denmark: Even easier than unregistered designs?

By

Lars Karnoe

lars.karnoe@twobirds.com

19 Apr 2017 , 2:00pm

Denmark has a wide protection of applied art under the copyright law, however one particular field stands out as difficult – articles of clothing, or more precisely fashion items within the textiles industry.

In a recent court decision it was articulated like this; '… taking in to account the need for freedom to operate in the market, including the need to counter monopolisation, Danish tradition calls for a high degree of originality and artistic effort before a copyright protection can be awarded to fashion items as they as such are created to be momentary.'

Danish Marketing Act

Does that leave fashion without a protection against infringements? No -- but rather than using the copyright law, or the design law for that matter, the Danish courts tend to rely on Article 1 of the Danish Marketing Act. Article 1 offers a protection against unfair marketing practices between businesses, including a protection of products against unwanted imitation. To enjoy the protection the item in question must have some degree of distinctiveness and have a position in the market. The latter requirement is often interpreted such that the defendant must have had knowledge of the imitated item. In many cases the mere fact that there is a high degree of similarity between items of a certain distinctiveness is often seen as evidence of sufficient 'knowledge'. The requirement for a market position is not interpreted as a requirement that the item is well known in the market or has a certain market share.

The protection under Article 1 resembles in many aspects the protection awarded to unregistered design under the EU Design Regulation, but the protection is not limited to a time span of three years – the protection can be claimed as long as the infringed item is in the Danish market and the infringing item is competing with the infringed item in the market.

Case study

There have been a near endless number of cases before the Danish courts where Article 1 has been relied upon. In a decision from 20 March 2017, in a preliminary injunction proceeding before the Maritime and Commercial Court in Copenhagen, the company Rains claimed protection for the following three jackets:

Against these three jackets from company Tif & Tiffy:

Rains had designed and sold their jackets since early 2012 and Tif & Tiffys sold theirs since August 2016, however Rains had not become aware of Tif & Tiffys jackets before the Copenhagen Fashion Fair in February 2017.

Rains claimed copyright protection and submitted a statement from an industrial designer in support, stating that the jackets were products of a unique creative effort by Rains' designer. Copyright protection was denied by the court, stating that the court considered the jackets a mere combination of already existing design elements.

Rains further claimed protection under Article 1. The court found that the specific combination of known elements through the marketing by Rains had obtained a commercial distinctiveness that was protected under Article 1. The court also found that Tif & Tiffys jackets were slavish imitations and that the design elements and design characteristics from Rains jackets were found in Tif & Tiffys jackets, leaving the same overall impression.

Thus the court decided that Tif & Tiffys jackets constituted an infringement of Rains jackets and an injunction was issued against the production, marketing and sales of the jackets in Denmark, and Tiff & Tiffys were ordered to withdraw already sold jackets from the Danish market.

Conclusion

To sum it up – do not despair if you do not have any registered intellectual property rights to counter a case of product imitation in the Danish market and your unregistered EU design protection has expired. You are still very likely to have a protection for your products under the Marketing Act Article 1.